Who decides duty in cases of negligence?

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GMX2000
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Who decides duty in cases of negligence?

Postby GMX2000 » Wed Oct 31, 2012 11:46 am

What's the boundary between what is a question of law vs. of fact with regard to the "reasonably prudent person under the circumstances" standard of determining duty in negligence cases? Does the judge determine whether there is a duty, but the jury determines what that duty is? But doesn't everyone have a duty towards others to exercise reasonable care? (except in one-way circumstances like a patient at a nursing home or something)

nucky thompson
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Re: Who decides duty in cases of negligence?

Postby nucky thompson » Wed Oct 31, 2012 11:57 am

(disclaimer: I am a 1L - this is my understanding)


Plasgraf

Cardozo (majority opinion) used the concept of foreseeability when determining if D owed P a duty. This allows the judge more control over the case. Cardozo said, as a matter of law, that the D did not owe P a duty because the P was not a foreseeable plaintiff. Under a Cardozo formulation, D only owes a duty to P if the P is within the foreseeable class of persons under the circumstances - "zone of danger"

The dissent from Andrews used foreseeability differently. Andrews argued that a P owes a duty of reasonable care to EVERYONE, whether they are a foreseeable P or not. Andrews used the concept of foreseeability when analyzing proximate cause - was the P's injury so remote/unforeseeable as to cut off the cause in fact chain of events - proximate cause is typically a jury determination.

Cardozo's use of foreseeability gives a judge more control over the case. The judge can determine if there is a duty owed, then the jury can determine if that duty was breached/if the breach was a proximate cause of the harm (can use foreseeability concept in both duty/proximate cause)

Andrew says we inherently owe a duty to the world. This gives a judge less control over the suit. If we do not conform to duty of reasonable care under the circumstances, we breach that duty to the world. Causation will be where we separate which P can properly recover as a result of D's breach.

Benjamin1987
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Re: Who decides duty in cases of negligence?

Postby Benjamin1987 » Wed Oct 31, 2012 12:43 pm

(1L disclaimer)

The judge determines the duty and what that duty is. The duty is not universal. The judge weighs several things in determining if a duty exists:
1) Morality
2) Foreseeability
3) The burden it would create
4) Alternatives
5) The increase in safety
6) The possibility chilling effects
7) Administrability effects

Whether or not there is a breach is the question of fact. Here's how I've conceptualized it in my mind:
1) Risk creation - a duty to act reasonably under the circumstances to prevent unreasonable risk of damage.
This is an easy question to answer based on an objective test. The line on how far this duty runs is limited through proximate cause.

The duty can also be adjusted based on the person creating the risk:
a) children
b) superior abilities
c) handicaps (physical not mental)
d) etc.

Additionally, the duty is limited through policy concerns (i.e. utility companies, intergenerational duties, etc.) and special circumstances/entities (governmental agencies, landlords, land owners, etc.).

2) Omissions - no duty to act even with special knowledge expect under certain circumstances:
a) contractual situations
b) status relationships
c) non-negligently created risk
d) gratuitious promise to assist
e) etc.

3) remember that breach will be determined through the method that is most appropriate under the circumstances:
a) Hand BPL
b) Res Ipsa
c) Customs
d) Negligence per se
e) etc.
Think: what applies most relevantly to my fact pattern?

Feedback welcomed.

Black-Blue
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Re: Who decides duty in cases of negligence?

Postby Black-Blue » Wed Oct 31, 2012 10:08 pm

GMX2000 wrote:Does the judge determine whether there is a duty, but the jury determines what that duty is?

Judge decides both.

But don't confuse the question of duty and the question of breach. Whether there was a breach is a question of fact.

So if the judge decides that the duty is something abstract and vague like "a reasonable person," the jury has a lot of discretion in determining breach.

But if the judge hypothetically decides that the duty is something very specific like "defendant had duty to perform x, y and z with reasonable prudence" then the jury has less discretion. A duty like this might be applicable if the law of the jurisdiction has specific legal standards governing negligence in specific situations.

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MrSparkle
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Re: Who decides duty in cases of negligence?

Postby MrSparkle » Thu Nov 01, 2012 12:13 am

I think maybe you need to take a step back here - (I'm 1L)

The judge theoretically only determines questions of law, jury determines questions of fact (or mixed questions of fact and law, e.g. the reasonable person standard, b/c the jury makes a rule of what that standard is and applies that rule to the facts).

Every legal rule you learn in torts (actually I guess every legal rule period) is to determine whether the judge will permit the jury to decide something. So some rules, like Palsgraf, say that as a matter of law, the court will not allow the jury to determine whether Palsgraf's injury was proximately caused by the defendant railroad/conductor, because Cardozo said so (<--last bit's a joke). That is all it means.

In contrast, the dissent in Palsgraf was NOT saying that the defendant should be the proximate cause as a matter of law. Rather, it should be for the jury to decide. Big difference.

Compare this to a statutory violation and negligence per se. This generally means that if a defendant violates a statute (usually related to safety) that defendant is negligent per se. This means the question of whether the defendant was negligent (reas. prudent person yadda yadda) is NOT for the jury to decide, rather, the defendant is negligent as a matter of law for violating a statute (b/c reas. people don't violate statutes in the eyes of the law), so when instructions are given to the jury, they will be told to assume the defendant is negligent. Note also that this does not mean the defendant is automatically liable - you still have to prove causation and damage elements.

Also, another broad point - there is no general affirmative duty to others. That means you don't have to help others, in general. Keep that separate from duty to exercise reasonable care, which is in a way, more passive.

Caveat: my prof is a high-level abstractionist I don't understand most of the time.

Hope that helps.

GMX2000
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Re: Who decides duty in cases of negligence?

Postby GMX2000 » Thu Nov 01, 2012 2:32 am

These posts do help. I guess I was just confused because we talked in class about how it has to be "reasonably prudent person under the circumstances", and there were various cases about how things like emergency situations should just be one of the circumstances for the jury to consider rather than a separate instruction in itself.

But don't confuse the question of duty and the question of breach. Whether there was a breach is a question of fact.

So if the judge decides that the duty is something abstract and vague like "a reasonable person," the jury has a lot of discretion in determining breach.

This in particular was quite helpful.

So basically, the judge determines whether there even is a "reasonably prudent person under the circumstances" duty (and I guess in some situations there aren't, per Cardozo in Palsgraf), but the jury in determines whether the defendant acted reasonably under the circumstances? Which essentially gives them the ability to determine the specifics of what the duty entailed in the particular circumstances, right?

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MrSparkle
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Re: Who decides duty in cases of negligence?

Postby MrSparkle » Thu Nov 01, 2012 11:01 am

Whether there is breach is not always a question of fact for the jury to decide though. Judges decide questions of fact as a matter of law as well (is that confusing or what!). So with statutory violation that I mentioned before, deciding that a violation of statute is negligence as a matter of law is deciding that the defendant breached a duty of care, so don't make the mistake of thinking the question of breach always goes to the jury.

To answer your question, the separation is not so clear. The jury determines whether the defendant acts reasonably only if the judge lets the jury get to the question. If the judge believes reasonable people could not disagree (i.e. there is only one possible decision) they keep that away from the jury to prevent an irrational result.

You could think of the judge determining whether there is a duty before it goes to the jury to decide if there's a breach, but that's a little oversimplifying, because duty is sometimes tied up in causation - e.g. Palsgraf. "Was there a duty to Palsgraf?" is equally saying "Was the railroad a proximate cause of Palsgraf's harm?" and though Cardozo describes this in terms of "duty," his same description applies to proximate cause.

I think I am not helping much at this point...

Black-Blue
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Re: Who decides duty in cases of negligence?

Postby Black-Blue » Thu Nov 01, 2012 11:14 am

GMX2000 wrote:So basically, the judge determines whether there even is a "reasonably prudent person under the circumstances" duty (and I guess in some situations there aren't, per Cardozo in Palsgraf), but the jury in determines whether the defendant acted reasonably under the circumstances? Which essentially gives them the ability to determine the specifics of what the duty entailed in the particular circumstances, right?

Yes. If the judge determines that the duty is "reasonably prudent person under the circumstances" and that is all there is to it as a matter of law, then in practical terms, the jury (in deciding whether there was a breach) essentially has the ability to determine the specifics of what the duty entailed in the particular circumstances. Just to clarify, as the poster above mentions, there are some situations where the Judge can decide the factual issue of breach, but as a default rule, the issue of breach is for the jury. There are a lot of procedural complications in the judge-jury divide. My suggestion is to work from the default rules.

In some situations, the judge will determine that the duty is more specific than that. For example, in slip-and-fall (premises liability) cases, the judge might determine that the storeowner had a duty to "to warn the customer of any unsafe condition which the owner knows." In this situation, the jury still has some ability to determine the specifics of what the duty entailed in the particular circumstances, but the range of the jury's discretion is much more narrowed because the judge has defined the duty to be relatively narrow.

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Oglethorpe
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Re: Who decides duty in cases of negligence?

Postby Oglethorpe » Thu Nov 01, 2012 10:27 pm

2L here. Just a couple of thoughts:

First, the Torts E&E is amazing; use it.

Second, think of Cardozo's duty as relational. In other words, duties run from person to person. The question is whether this particular person owes a duty to that particular person.

Third, when you analyze duty you don't need to discuss the applicable standard of care. The issue in your duty paragraph is whether a court would find a duty. You can discuss the standard of care and whether it was breached in your paragraph on breach. Standard of care is pretty straight forward. Use the reasonable person standard unless the facts suggest another standard is applicable (i.e. a child or a doctor). Also, trade custom or statutes can be evidence or actually set the standard of care. Everything else is just reasonable person in the facts and circumstances. Of course, listen to your professor. This is what worked for me.




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